Dutton v. State

Decision Date01 May 1914
Docket Number2.
Citation91 A. 417,123 Md. 373
CourtMaryland Court of Appeals

June 24, 1914.

Appeal from Circuit Court, Dorchester County; Henry L. D. Stanford and Robley D. Jones, Judges.

James Dutton was convicted of assault with intent to rape, and he appeals. Reversed, and new trial awarded.


Thomas W. Simmons, of Cambridge, for appellant

V Calvin Trice, of Cambridge, and Edgar Allan Poe, Atty. Gen for the State.


The court being of the opinion that there was error in taking the testimony of the prosecuting witness, Margaret Gillis, out of the presence of the prisoner, under the circumstances set out in the record, the judgment will be reversed. An opinion will hereafter be filed giving the reasons for the conclusions reached by the court.

Judgment reversed, and new trial awarded.


The appellant was convicted of an assault with intent to rape, and was, by virtue of section 17 of article 27, Code of Public General Laws, as amended by chapter 366 of Acts of 1908, sentenced to be hung. The record originally transmitted to this court was defective, but on application of the appellant a writ of diminution was ordered. The appellant then applied to the lower court to have the record in that court corrected, so as to have what occurred properly stated. In Greff v. Fickey, 30 Md. 75, after a writ of diminution was issued by this court, for the purpose of having some alleged errors in the record corrected, a motion was made to have the docket entries in the lower court amended and completed, but that court overruled the motion because it was of opinion that, the term having passed, and the Court of Appeals having ordered that the docket entries be returned as they actually stood upon the docket, it would be improper to grant the motion. This court, through Bartol, C.J., said:

"We think the learned judge was in error as to the purport and design of the writ, and his powers and duty in the premises. If satisfied either from his own knowledge of what had actually occurred in the progress of the cause-- or from evidence adduced--that the docket entries as made by the clerk were erroneous or incomplete, it was within his power and his plain duty to have them corrected, so that a full, true, and perfect transcript of the whole proceedings as they actually occurred in the progress of the cause might be sent up, in obedience to the writ."

That course was also approved in Hays v. P. W. & B. R. R. Co., 99 Md. 413, 58 A. 439, and Koch v. Wimbrow, 111 Md. 21, 73 A. 896.

The lower court accordingly very promptly and properly granted the motion of the appellant in this case, and has made certain corrections which we will insert in this opinion, so that it may be seen how the record now stands; the action of that court in reference to the changes requested being final and not subject to review on appeal. Greff v. Fickey, supra. By an order in writing signed by the two judges who sat below, the clerk was directed to and did make the changes, additions, and corrections in the docket entries and record, so as to now read as follows:

"Plea and Traverse. Whereupon the said James Dutton, traverser, cometh to the bar of the court here in his proper person, and, forthwith being demanded concerning the premises in said indictment above specified and charged upon him, how he will acquit himself thereof, he waived arraignment, and he said, 'Not guilty,' and 'Traverse before the court,' and the said V. Calvin Trice, Esq., state's attorney of Dorchester, aforesaid, who for the said state of Maryland in his behalf prosecuteth, doth the like. That the consent of the attorneys for the state and for the traverser having been first given, thereupon the trial in this case was adjourned to and held in the petit jury room, immediately adjoining the courtroom proper, including the taking of all testimony, and the same being taken in the presence of the court, the clerk with his docket and other court officers, the said attorneys for the state and traverser, and all witnesses, but without the presence of said traverser during any part of the testimony of the chief prosecuting witness, Margaret Gillis, who testified while said traverser was in said adjoining courtroom, with the door of communication closed, and in custody of the sheriff, except for the interval when said traverser was brought to said communicating door then opened, and identified by said witness, the said door being immediately thereafter closed until said witness left the stand and the traverser brought into said petit jury room to testify in his own behalf, where he then remained until the conclusion of said trial. The court, having heard evidence, thereupon directed the clerk of the court to enter in the proceedings in said case. 'The court finds the party guilty.'
Sentence. Whereupon all and singular the premises being seen, and by the court here fully understood, it is thereupon considered by the court here that James Dutton, prisoner at the bar, be taken to the jail of Dorchester county from whence he came, and from thence to the place of execution," etc.

A motion for a new trial was made "short" the day the appellant was sentenced (November 14, 1913), and on November 18th a formal motion in writing was filed. On December 23d that motion was overruled, and on January 24, 1914, which was during the same term of court, a motion to strike out the judgment and sentence was made, which was overruled, and this appeal was taken to this court. That the action of the court in overruling the motion for a new trial is not subject to review by us is too well settled to require or justify the citation of authorities, but its action on the motion to strike out the judgment and sentence is reviewable by us. The ruling on such a motion was reviewed by us in Hommer v. State, 85 Md. 562, 37 A. 26, and other cases which might be cited, but we are confined to what appears on the face of the record itself, and there is no bill of exceptions, agreed statement of facts, or substitute for either of them. We will consider the questions referred to in the motion, but in somewhat different order from that in which they are therein stated.

1. Objection is made that the appellant was not arraigned. An assault with intent to rob, murder, or commit a rape is not a felony in this state. The punishment for those crimes is provided for in one section of the Code, and has been for many years, being now section 17 of article 27. In Hollohan v. State, 32 Md. 399, it was said:

"Robbery, murder and rape are felonies. To constitute either of these crimes, the felonious act and felonious intent must concur. An assault with intent to commit either of these crimes is not a felony, but to bring an assault within this article and section, and subject the party charged to the punishment provided, it must be charged and proved to have been committed with an intent to commit a crime, which is a felony. If the intent had been effectuated by the act, a felony would have been committed. Only because it was not effectuated, the crime sinks from the grade of a felony to that of misdemeanor."

See, also, State v. Dent, 3 Gill & J. 12.

The distinction made in some jurisdictions that crimes punishable by death or confinement in the penitentiary are felonies and others misdemeanors has never existed in this state, but here only those are felonies which were such at common law, or have been so declared by statute. The fact that a crime is punishable in the penitentiary or is "infamous" does not make it a felony in this state. It was said in State v. Bixler, 62 Md. 360:

"The general court of this state in [Clarke's Lessee v. Hall] 2 Har. & McH. 378, defined 'infamous crime' to be one which rises at least to 'the grade of felony.' This is however too narrow, for perjury is a misdemeanor, but by all authority is 'infamous."'

On the same page it is also said:

"There are many misdemeanors punishable by confinement in the penitentiary, which clearly are not 'infamous crimes' within the meaning of the common law or of the Constitution. If, for example, the prisoner has been convicted of any of the assaults with intent, mentioned and punished by the Code, and had been sentenced to the penitentiary and served his time out there, without being pardoned by the Governor, he would not be chargeable with having committed an 'infamous crime."'

In Garitee v. Bond, 102 Md. 379, 62 A. 631, 111 Am. St. Rep. 385, 5 Ann. Cas. 915, Judge Schmucker, in delivering the opinion of the court, referred to the case of Ex parte Wilson, 114 U.S. 422, 5 S.Ct. 938, 29 L.Ed. 89, where the Supreme Court held that the provision in the United States Constitution which prohibits prosecution for "a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury" must be considered not merely from the standpoint of the character of the crime, but also from the nature of the consequences to the accused, if he should be found guilty, and went on to say:

"But even in Wilson's Case it was held that at common law prior to the Declaration of Independence 'it was already established law that the infamy which disqualified a convict to be a witness depended upon the character of his crime and not upon the nature of his punishment."'

Again it was there said, "The authorities generally, though not with entire uniformity, hold that the infamous nature of a crime was determined at common law by the character of the act itself, and not by the penalty inflicted for its commission," and after referring at length to State v Bixler, supra, it was distinctly held that the crime considered in Garitee v. Bond could not be...

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